What We’re Reading

Here is some of the legal scholarship Benchwarmers is reading this week. Topics include federal Indian law, education, personal jurisdiction, and appellate certification of state law questions. Articles sourced from the latest issues of the Boston University Law Review, the Emory Law Journal, and the Northwestern Law Review, as well as last month’s issue of the Duke Law Journal.

Reviewing Administrative Action: Salinas v. RR Retirement Board

The U.S. Railroad Retirement Board said, “we refuse to reconsider our decision to deny a railroad worker disability benefits.” The Supreme Court replied, “Fine. Federal courts can review your refusal.” The vote was 5:4. The majority’s decision is another win for those—like me—who generally favor judicial review of administrative action. But the win is a shaky one; the Justices disagreed about how to interpret a single clause in an Act of Congress, and both interpretations are intrinsically valid.

Dream On, DACA! DHS v. University of California

Yesterday, Chief Justice Roberts concluded that the Trump administration violated the Administrative Procedure Act when it attempted to rescind Deferred Action for Childhood Arrivals, or DACA. Roberts’ opinion is momentous—both in what it says and in what it does not say. For example, Roberts is coy on whether DACA itself is legal. He concludes only that the manner in which the Trump administration sought to cancel it did not follow the proper administrative procedure. On the other hand, three Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—were not shy in saying the opposite, bluntly declaring that DACA is illegal and that there’s no other justification required to terminate it. For now, Roberts’ opinion keeps DACA on the books and its recipients in the country. Their dream remains alive, albeit temporarily. Read more for an in-depth analysis of the Court’s decision in Department of Homeland Security v. Regents of the University of California.

Congress Walks the Plank: Allen v. Cooper

This past Monday, the Supreme Court in Allen v. Cooper struck down a 1990 Congressional statute that had allowed citizens to sue a state in federal court for copyright infringement. The case arose after a marine salvage company discovered the wreck of the Queen Anne’s Revenge, Blackbeard’s famous pirate ship, off the coast of North Carolina and recorded documentary footage of the discovery. When North Carolina published some of the footage in various media, the company sued the state for copyright infringement. The question before the Court was whether the Constitution gives Congress the power to rescind the states’ sovereign immunity from copyright infringement claims. Justice Kagan answered “no” with a 7:2 majority, leaving the company marooned. (For lovers of wordplay and maritime puns, this piece is for you.)

This Week’s Brief: November 25

Thanksgiving came early this week at the Supreme Court. The Justices issued their first decision of the term, a per curiam opinion in a campaign finance case. We also saw three opinions relating to Monday’s orders list: Justice Alito dissented from a denial of cert in a First Amendment defamation case, Justice Kavanaugh called for a revisitation of the Court’s nondelegation doctrine, and Justice Sotomayor seemed unnerved by a bizarre case of judicial bias out of Arkansas. The Justices also issued a temporary stay in one of President Trump’s tax returns cases. All this to start off the week of the best meal of the year—perhaps the Justices wanted to get their official work done in order to focus on food prep. At any rate, here’s a recap of what happened at the Supreme Court this week.

Partisan Gerrymandering: Rucho v. Common Cause

Partisan gerrymandering refers to the redrawing of a state’s congressional districts with the objective of catering to the interests of one political party over another. Often, the party doing the redistricting purposefully redraws the districts in such a way as to ensure that more of their members get elected to Congress than in an otherwise fairly-drawn map. The result is either a “cracked” district—a bizarre, jagged-looking district in which the other party’s members are divided among multiple other districts, so that they do not constitute a majority in any—or a “packed” district—a small, normally urban district in which the opposing party’s members are crammed so that they win by a landslide and “waste” many votes that could have been useful elsewhere. A number of these districts have been the subject of lawsuits, which have percolated their way through the federal courts. After punting on several such cases in recent years, the Supreme Court on Thursday finally answered the question of whether federal courts can strike down partisan gerrymandering—and gave what many might say is a profoundly surprising answer.

Crosses on Public Land: American Legion v. American Humanist Association

Only a few blocks from downtown Bladensburg, Maryland, towers a 32-foot-tall Latin cross. The “Peace Cross,” as it is called, has stood there since 1918, when residents of Prince George’s County sought to build a memorial commemorating the soldiers from that area who died in World War I. From 1925–1961, the local American Legion owned the cross, emblazoning its emblem on the cross’ center and placing a plaque at its base with the words “Valor,” “Endurance,” “Courage,” and “Devotion,” as well as the names of 49 fallen soldiers and a quote from President Woodrow Wilson. Since 1961, the Peace Cross has been under the ownership of the State of Maryland, who has used public funds for maintenance and upkeep when necessary. But in 2014, the American Humanist Association (among others) challenged the constitutionality of the Peace Cross, arguing it violates the Establishment Clause of the First Amendment. The question must then be asked: Are they right?

Double Jeopardy: Gamble v. United States

The Fifth Amendment’s Double Jeopardy Clause protects us against being charged and convicted of the same crime twice. But the Clause’s dual-sovereignty doctrine allows for successive prosecutions if conduct violates the laws of two separate sovereigns (i.e., state law and federal law). This term, in Gamble v. United States, the Supreme Court considered whether to jettison the dual-sovereignty doctrine as contrary to the Double Jeopardy Clause. On Monday, June 17, it declined to do so, a now-familiar decision in the Court’s 170-year-old Double Jeopardy Clause jurisprudence. Here is my review of Gamble v. United States.

State Sovereign Immunity: Franchise Tax Board of California v. Hyatt

There is a principle in the legal field called “stare decisis.” From Latin, it translates literally to “stand by what is decided.” In layman’s terms—and in law—it means that a court ought to apply the same reasoning as it did in a prior case, and ought to rule analogously to its earlier decisions in similar cases. It is not a set-in-stone policy that entertains no deviation; the Supreme Court has, throughout its history, overruled a few dozen of its decisions. Think of Plessy v. Ferguson in 1896, in which the Court held that racial segregation was constitutional, versus Brown v. Board of Education of Topeka, Kansas in 1954, in which it held that racial segregation was unconstitutional. On Monday, the Court added one to that list, overruling one of its cases from 1979. While the subject matter of the case (state sovereign immunity) may sound anemic and technical, this Court’s demonstration—that it is not averse to overruling an earlier case—is anything but. For the ardent Court-watcher, you may remember that the question of whether the Court will overrule Roe v. Wade (the case in which the Court recognized a woman’s right to privacy in her desire to obtain an abortion) was omnipresent during the confirmation hearing of Justice Brett M. Kavanaugh. And while state sovereign immunity has virtually nothing to do with abortion, the five-member conservative bloc of the Court has now hinted that it is open to deviating from stare decisis. Here is my analysis of the Court’s decision on Monday in Franchise Tax Board of California v. Hyatt.

The “Travel Ban”: Trump v. Hawaii

Entering the week of June 24, the Justices had yet to release decisions in six argued cases. With the release of only two such cases Monday morning (in which the Court left three highly-charged cases out to dry), it was evident that the Court would not conclude its term with a whimper. Indeed, the Justices did not fail to deliver on this notion, releasing opinions yesterday morning in National Institute of Family & Life Advocates v. Becerra (No. 16-1140), a First Amendment challenge to California’s Reproductive FACT Act, and perhaps the most anticipated ruling of the term, Trump v. Hawaii (No. 17-965), the multi-faced challenge to President Trump’s “travel ban” proclamation from September of 2017.

After the Court’s release of its decision in National Institute of Family & Life Advocates v. Becerra (see my review of the opinion here), Chief Justice Roberts announced that he had the decision in Trump v. Hawaii. By a 5:4 tally, the Supreme Court upheld President Trump’s Proclamation No. 9645 of September 27, 2017, which restricted immigration of certain aliens from eight specific countries. This was the third iteration of the immigration order. For the Court, Roberts was joined by Justices Kennedy, Thomas, Alito, and Gorsuch.